Housing and property law

TRUSTEES OF BODY CORPORATE NOT ALLOWED TO DISCONNECT ELECTRICITY OR WATER SUPPLY TO A SECTION AS A DEBT COLLECTION MEASURE

The default of levy payments is a frequent problem for the trustees of body corporates as well as the managing agent. It is the way in which the defaulting owner is treated and the outstanding debt collected, that will make the difference between a functioning, financially stable sectional title scheme or an impending disaster zone.

In these testing economic times, monthly levy payments are sometimes considered by owners of sectional title sections to be an optional expense in making ends meet on a tight budget. Once an owner has got away with defaulting on one payment, habitual default becomes easy, and more so if the trustees and management agent are slow to react to the failure to pay. The problem is worsened by the fact that the monthly levy is carefully calculated prior to the annual general meeting to be the minimum amount possible, in an attempt to accommodate the owners. However, these small monthly levies could easily accrue over a few months to a significant amount, aggravated by interest and reflected as a substantial outstanding debt.

These non-payers place severe financial restraints on the cash flow of a body corporate which is largely dependent on the timeous monthly payments by all its members to fulfil its monthly obligations to, inter alia, municipalities regarding water and common area electricity usage, security, and general upkeep of the property. If the body corporate does not have large financial reserves on which it can rely in the event of default by its members, the impact of the default can be severe and can cause unnecessary hardship for other owners. There are known instances of special levies raised in order to assist the body corporate in its financial hardship.

Many trustees and managing agents, in order to recover outstanding amounts, revert to taking the law into their own hands by cutting off the water and electricity supply to such members’ sections or units. Some have even passed rules which allow for such actions. Justifications for these actions by trustees and management agents are abundant, but none of these are legally sound or will stand in court.

By withholding the water and/or electricity supply to the section, whether or not it is allowed for in the rules, the trustees and management agent not only disregard the owner’s constitutional rights to access to water as well as the provisions of the electricity act, but also specific stipulations of the Sectional Title Act, Act 95 of 1986 as amended (“the Act”) and confirmed in case law. Such trustees and managing agents expose themselves and the trustees in their personal capacity, to an application by the owner and/or the occupier, against the spoliation of such services, or access with a court order for immediate re-connection. The body corporate or management agent may not interfere with water and electricity services rendered to a section or unit. The penalty will be a cost order, if not granted on a punitive scale, red faces, and a lot to answer to at the next annual general meeting.

The Act clearly stipulates in Section 37(2) that trustees must approach by action any court, including the Magistrate’s court, for recovery of any and all contributions levied under the provision of Section 37(1), which include monthly levies, special levies, interest, and legal costs on attorney and client scale.

The trustees and managing agent have no choice herein. Prompt debt collection action taken against any owner immediately on default, will be the best defence. Therefore the trustees must ensure that the appointed management agent either has a proven track record or a detailed collection policy prior to appointment of such agent. We all know that the wheels of justice turn slowly, and that it can take months for the default judgement to be granted and the warrant issued. By delaying the collection process the outstanding levy account increases exponentially, together with the burden on paying owners.

Therefore, the trustees themselves should keep a watchful eye on monthly payments and ensure that defaulting owners are immediately contacted by the management agent and, if they persist in the default, handed over to competent attorneys for collection. The sooner, the better. The old adage “absentee landlords gather no crops” is fitting, and trustees should ensure that the management agents attend to defaulters speedily and effectively in the interest of both their own property investment and that of the other owners in the sectional title scheme.

For further reading, see the judgement by Blieden J with Serobe AJ concurring in Queensgate Body Corporate vs MJV Claesen delivered on 26 November 1998 in the Witwatersrand Local Division, case number A3076/1998, and case law referred to therein.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Marriage

THE POSITION OF SAME-SEX MARRIAGES IN SOUTH AFRICA

In December 2005 South Africa became the fifth country in the world and the first country on the African continent to recognise the rights of same-sex couples. The Constitutional Court case of Minister of Home Affairs vs Fourie is the ground-breaking decision which legalised homosexual marriages in South Africa.

The legal question in the Minister of Home Affairs vs Fourie was twofold:

Firstly, the court had to decide whether the fact that no provision was made for same-sex marriages in any statute, amounted to the denial of equal protection of the law and unfair discrimination by the state against homosexuals on the basis of their sexual orientation. Secondly, if such unfair discrimination were to be found, the court had to decide on an appropriate remedy.

Judgement

In a unanimous decision the Constitutional Court declared that the common law definition of marriage, and section 30(1) of the Marriage Act, which excluded same-sex marriages, were inconsistent with sections 9(1) and 9(3) and section 10 of the Constitution that dealt with the right to equality and the right to human dignity respectively.

The Court highlighted that South Africa has a multitude of family formations and as such it was held to be inappropriate to enforce any one particular form as the only socially and legally acceptable one. The Court emphasised a constitutional need to acknowledge the long history in South Africa of the marginalisation and persecution of gays and lesbians. Further, the Court acknowledged the lack of a comprehensive legal regulation of the family law rights of gays and lesbians.

It was found that excluding same-sex marriage is an indication that homosexuals are to be considered “outsiders”. In the words of Judge Sachs, writing on behalf of the majority: “To penalise people for being who and what they are, is profoundly disrespectful of the human personality and violators of equality. Equality means equal concern and respect across difference.” In effect the Court acknowledged a “right to be different”.

Religious arguments

Among the various arguments opposed to the issue at hand were inevitable contentions raised by religious institutions, which the Court respectfully heard. However, it was held that judges would be placed in an intolerable situation if they were called upon to construe religious texts and take sides on issues that have caused deep divisions within religious bodies. In the open and democratic society contemplated by the South African Constitution there must be a mutually respectful co-existence between the secular and the sacred. Furthermore, it was held that the recognition of same-sex marriages would in no way force religious institutions to accept or perform such marriages within their chosen belief, nor would the recognition deprive any religion or heterosexual couple from marrying within the tenets of their beliefs.

Civil Union Act 17 of 2006

The final finding of the Court was that the common law definition of marriage was inconsistent with the Constitution and invalid to the extent that it did not permit same-sex couples to enjoy the status and the benefits, coupled with responsibilities it accords to heterosexual couples. Furthermore, section 30(1) of the Marriage Act was declared to be invalid to the extent that it gave effect to the exclusion of same-sex marriages. In order to remedy the situation parliament was given 12 months to cure the defect through the implementation of legislation.

Ultimate relief came in the form of the Civil Union Act 17 of 2006, which makes provision for same-sex marriages and operates alongside the Marriage Act, such that any individual in South Africa may now conclude a marriage either in its traditional form (under the Marriage Act) or in the form of a civil union (under the Civil Union Act). Civil partnerships (or unions) are entirely the same as marriages insofar as legal consequences are concerned but just differ in name.

Conclusion

One of the most important lessons to be learnt from this case is in this statement made by the Court: “At issue is a need to affirm the very character of our society as one based on tolerance and mutual respect. The test of tolerance is not how one finds space for people with whom, and practices with which, one feels comfortable, but how one accommodates the expression of what is discomfiting.” 

It goes without saying that the enactment of the new Act changes the discriminatory background of common law in respect of same-sex relationships. The consequences of a civil union are now the same as in a marriage of a heterosexual couple. It must be noted that an unregistered same-sex relationship is not governed by the provisions of this Act, and that the law allows for churches to refuse to perform civil unions.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Electronic Communication

DURBAN HIGH COURT “LIKE” SERVICE VIA FACEBOOK

Facebook can be described as a social network that provides people with the opportunity to connect and communicate with friends, family, acquaintances, colleagues and even strangers, around the world. The success and popularity of this social network is not in question when looking at their more than 9 billion users, of which 900 million check or update their account at least once a month. 

Despite the general criticism against South African courts for being sceptical and sometimes slow to accommodate developments of this kind, widespread controversy occurred when a Durban High Court judge, Judge Ester Steyn, welcomed the service of a court process on the defendant’s Facebook social network page.

This urgent ex parte judgement followed after the defendant’s attorney of record withdrew  in the matter of CMC Woodworking Machinery (Pty) Ltd vs Pieter Odendaal Kitchens and failed  to provide the plaintiff’s attorneys with an alternative address where notice to the counterparties could be served. At this stage of the process, pleadings had already been exchanged on both sides and the parties awaited the allocation of a trial date. Needless to say, the plaintiff’s attorneys were in the position where they had no alternative address to serve the court documents on the defendant. All subsequent attempts to contact the defendant in accordance with the rules of court, proved unsuccessful. Consequently, the plaintiff (applicant) brought an urgent application for substituted service on the defendant’s personal Facebook page.

In view of the application, Judge Steyn placed a great deal of emphasis on the recent amendment to the Uniform Court Rules, and more specifically Rule 4A, in which provisions of the Electronic Communication Act 25 of 2005 were incorporated. This rule allows litigants to serve courtdocuments by e-mail or fax and was specifically created to ensure that the court processes are brought to the attention of the relevant party.

Furthermore, these rules make provision for the appropriate procedure to be followed in the event of unsuccessful service in the ordinary course of business. This process is called substituted service. The party who seeks to serve the court document must apply to the court for substituted service and only after the court is satisfied that the particular method of service will be adequate and that the traditional methods of service were not effective, will a court grant leave for this type of service.

The judges in the courts will take the following into consideration:

  • Nature and extent of the claim
  • Grounds upon which the claim is based
  • Grounds upon which the court has jurisdiction
  • Method of service
  • Last known location
  • That the applicant has tried the usual methods and has tried to locate the respondent without success

Although Facebook is primarily used as a social network, according to Judge Steyn it is fair to draw the conclusion that this particular network is used for other useful functions such as tracking individuals as well as to obtain essential information. Judge Steyn emphasised that each application must be decided on its own merits and on the type of document that needs to be served on the party concerned.

Leave was accordingly granted to the applicant for substituted service using a personal Facebook message. In addition, to promote legal certainty, the judge ordered that the notice be published in a local newspaper should the defendant, for some reason, not have access to any electronic communication devices.

Service using a social media website like Facebook has a number of advantages. Many Facebook users probably spend more time on Facebook than reading a newspaper. A notification via Facebook is therefore more targeted and would be more likely to reach a person’s attention than an ad in the legal classifieds. This order is widely described as a ground-breaking judgement in South-Africa, and Facebook users can click “like” with satisfaction.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Consumer Law

THE CONSUMER’S RIGHTS UNDER THE CONSUMER PROTECTION ACT

Can a consumer take you, the service provider, to court because they did not understand some of the terms and conditions of your signed contract? Beware, the answer is Yes!

From April 2011 the Consumer Protection Act came into full effect with the result that it is now against the law to use difficult-to-understand language in any business document or contract.

Business usually comes with some kind of paperwork, whether it’s a contract, a letter of agreement or even an instruction booklet. These vital documents are often written in language that is hard to understand for the average consumer, which is why there are specific Plain Language regulations in The Consumer Protection Act to prevent consumers signing documents they do not understand.

Protecting the consumer

The Act’s express purpose is to make sure consumers are not treated unfairly – intentionally or not. This means that using plain language is more crucial than ever. From now on, using obscure and confusing wording, especially in binding contracts, is not allowed. Quite simply, it’s illegal!

Too many consumers have landed in big trouble, especially financial trouble, because they haven’t understood what they’ve signed. Sometimes contracts are written in bloated, bureaucratic jargon just because that’s the way it has always been, or because the people writing the contracts don’t know any other way to do it. Often, though, unscrupulous businesses have used complicated language on purpose, as a way to trick consumers into paying for something they can’t afford, to sign away their rights, or to agree to unfair terms and conditions.

Defining plain language

The Consumer Protection Act defines plain language in Part D, Section 22 as follows:

“For the purposes of this Act, a notice, document or visual representation is in plain language if it is reasonable to conclude that an ordinary consumer of the class of persons for whom the notice, document or visual representation is intended, with average literacy skills and minimal experience as a consumer of the relevant goods or services, could be expected to understand the content, significance, and import of the document without undue effort, having regard to:

  1. The context, comprehensiveness and consistency of the notice, document or visual representation;
  2. The organisation, form and style of the notice, document or visual representation;
  3. The vocabulary, usage and sentence structure of the notice, document or visual representation; and
  4. The use of any illustrations, examples, headings, or other aids to reading and understanding.”

This means that one won’t be permitted to word things so widely that they can be understood in several ways. The Act states that if there is any doubt about the meaning of certain words or terms and conditions, the benefit will go to the consumer.

Even advertising and marketing may no longer contain any ambiguity. Advertisements won’t be allowed to exaggerate and they will have to be easy to understand, fair and honest. The Act states that service providers will have to spell out everything in words that consumers can understand, alternatively the consumers have the right to full disclosure and information in plain and understandable language.

So, don’t delay. If you have a business document or contract that has been used for generations you might have to take a second look at it to edit or reword it so that it complies with the Consumer Protection Act.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Marriage

RULE 43 APPLICATIONS

Divorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time.

A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. [1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

  • Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[2] Rule 43(2) of the Uniform Rules of Court

[3] Rule 43(3) & (4) of the Uniform Rules of Court

[4] Rule 43(5) & (6) of the Uniform Rules of Court

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

POPI

POPI ACT

The Protection of Personal Information Bill, which will soon become law and is commonly referred to as POPI, seeks to regulate the processing of personal information.

It must be read with other relevant statutes such as:

  1. Electronic Communications and Transactions Act 25 of 2002 (‘ECT’)
  2. Promotion of Access to Information Act 2 of 2002 (‘PAIA’)
  3. Regulation of Interception of Communications Act 70 of 2002 (‘RICA’)
  4. Consumer Protection Act 68 of 2008 (‘CPA’)

Personal information of both employees and clients is – given e-commerce and technology used in connecting businesses – becoming instantly accessible to third parties.

POPI aims to introduce certain protection principles to establish minimum requirements for the processing of personal information. There are eight information protection principles contained in chapter 3 of the Bill, namely:

Accountability; Processing limitation; Purpose specification; Further processing limitation; Information quality; Openness; Security safeguards; Data subject participation. 

The intention is to promote transparency with regard to what information is collected and how it is to be processed. This might be the end of all those unsolicited sales calls and spam we receive on a daily basis. 

Processing means broadly anything done with personal information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).

POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation’s databases.

Compliance further demands identifying personal information and taking reasonable measures to protect the data, like tracking the workflow of client documents and ensuring that vital information is not misplaced or falls into the wrong hands.

The POPI Act is very much in line with similar legislation that exists in about 70 to 80 other countries, and South Africa is finally set to fall in line with international standards for the collection and handling of personal information.

The Act does not only protect the way in which information is used and/or re-used by the recipients of the information, but the party gathering the information also has the responsibility to ensure it is accurate, current and not misleading. Personal Information may only be processed if voluntary, specific and informed consent is obtained.

An Information Protection Regulator will be appointed who will have broad powers and may consider the public interest as opposed to an individual’s rights to privacy.

There are, however, cases where POPI does not apply. Section 4 Exclusions include:

  1. purely household or personal activity;
  2. sufficiently de-identified information;
  3. some state functions including criminal prosecutions, national security etc.;
  4. journalism under a code of ethics;
  5. judiciary functions etc.

Reference:

  1. http://www.popi-compliance.co.za/
  2. http://www.saaci.co.za/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Companies

JURISDICTION OF COURTS IN MATTERS INVOLVING COMPANIES

Traditionally, and under the previous Companies Act, a company could have a principal place of business and a registered office.  A company could, for instance, conduct its business at one office and also have a registered office with its auditors. In terms of the 1973 Companies Act any division of the High Court where a company’s registered office or its principal place of business was located, would have jurisdiction. More than one Court could, as a consequence, have jurisdiction in proceedings where a company was involved.

The new 2008 Companies Act, which repealed to a large extent the 1973 Act, does not have a similar wording that provides for more than one address. In the matter of Sibakhulu Construction (Pty) Ltd vs Wedgewood Village Golf Country Estate (Pty) Ltd (Nedbank Intervening) 2013 (1) SA 191 the Western Cape High Court dealt with the question of which Court would have jurisdiction where a company has a registered address different from its principal place of business.

The matter revolved around business rescue proceedings and winding up proceedings. The Court remarked that Section 128 of the Act makes reference to only “…the High Court…”  This wording denotes that a single Court would have jurisdiction over a company, and not more than one Court as in the previous Act. In dealing with the matter the Court considered the interpretation of the new Act.

Section 23(3) of the new Act specifically states that a company must continually maintain at least one office and register the address of its office or of its principal office if the company has more than one office. This office will, under the new Act, be the company’s registered office.  Section 23 makes it clear that this office must be maintained by the company itself and the following Section deals with documentary records to be kept at the address. The Court remarked that the new Act retained the institution of a registered office with which the outside world could make contact.

Unfortunately the Act does not define “principal office” but the Court remarked that, from a reading of the Act, it is clear that the intention is to denote the place where the administrative business of the company is centred. It follows, the Court suggested, that this office should also be the principal place of business. The Court concluded that the principal place of business and the registered office have to be at the same address under the new Act.

Reference was further made to Section 7 of the new Act where it is stated that the purpose of the Act is to provide a “predictable and effective environment for the efficient regulation of companies”. The Court held the view that to give effect to the purpose of the Act as set out in Section 7 it would follow that, in terms of Section 23, a company can only reside at its registered office, which means that only a single court can have jurisdiction.

Companies should be aware of this judgement and make sure that they register their principal place of business as their registered address.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

BBBEE

THE IMPACT OF THE NEW BBBEE CODES OF GOOD PRACTICE ON YOUR BUSINESS

The compilation and verification of a scorecard for an entity in terms of the Broad-Based Black Economic Empowerment (BBBEE) Act is done according to the Codes of Good Practice (the Codes) issued by the Department of Trade and Industry (the dti). The Codes have been amended and the new Codes were gazetted on Friday 11 October 2013. These changes will have a significant effect on the BBBEE strategy of businesses and careful consideration will have to be given to adjustments in this area.

Major changes to the previous Codes include:

  1. The seven elements on the scorecard are reduced to five elements and the weighting of each element has been adjusted as follows:
    • Ownership (25 points weighting)
    • Management Control (15 points weighting)
    • Skills Development (20 points weighting)
    • Enterprise and Supplier Development (40 points weighting)
    • Socio-Economic Development (5 points weighting)
  2. The total score will now amount to 105 instead of the previous 100.
  3. The elements Ownership, Skills Development and Enterprise and Supplier Development are now categorised as priority elements, which means that certain minimum requirements are set for these elements. Large enterprises are required to comply with all the priority elements, whereas Qualifying Small Enterprises (QSEs) have a choice to comply with Ownership and one of the remaining priority elements.
  4. If the minimum requirements set for priority elements are not met, the actual level obtained will be discounted by one level.
  5. The limits for Exempt Micro-Enterprises (EMEs) have been adjusted to enterprises with an annual turnover of between R0 and R10 million (unless a sector charter applies). EMEs will still be deemed to be level four contributors.
  6. QSE limits have been adjusted to enterprises with an annual turnover of between R10 million and R50 million (unless a sector charter applies).
  7. EMEs and QSEs with black ownership of more than 51% will automatically qualify as level two contributors.
  8. EMEs and QSEs with black ownership of 100% will automatically qualify as level one contributors.
  9. Start-up enterprises will still be measured as EMEs during the first year following the formation of the enterprise.

There will be a twelve-month period from 11 October 2013 to 10 October 2014 during which businesses may choose to have their scorecard compiled and verified under either the old Codes or the new Codes. The purpose of this is to give businesses a chance to align and implement their BBBEE strategy to comply with the new Codes. Sector charters also have to align to the new Codes, but it is unclear whether it will be possible or even required to do this during the twelve-month period.

It is crucial to seek expert advice when adjusting any entity’s BBBEE strategy in order to avoid costly mistakes and ensure maximum benefit for the business, while properly complying with the relevant BBBEE legislation. For instance, enterprises that previously relied on an annual Socio-Economic Development grant in order to obtain a required BBBEE level will have to significantly adjust this amount.

Only qualified verification agents accredited under IRBA or SANAS may conduct independent verifications and issue the applicable certificate.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Communication, Defamation

BE CAREFUL WHAT YOU WRITE OR SAY

Classically, the law of defamation attempts to strike a balance between a plaintiff’s right to reputation, and a defendant’s right to freedom of expression – two rights that are recognised both at common law and in the Constitution. Defamation is a serious consideration in the interaction with letters, e-mails and general discussions. A plaintiff needs to prove firstly that a comment regarding him/her was publicised (to someone else than the plaintiff) and secondly that the comment was prima facie defamatory. Once this has been determined the onus is on the defendant to prove that his conduct was not wrongful (without intent).

Wrongfulness is based on intent as opposed to negligence. Even where it remains that the comment was wrongful, the defendant might still have several defences like:

  1. Truth of the statement;
  2. That the comments are in public interest;
  3. That the comment was just an opinion and not given as a fact;
  4. That the comment was fair under the circumstances;
  5. That the comment was made under circumstances of qualified privilege, where the defendant had a duty and someone else had a duty to receive the comment.

The fact that comment is the truth does not mean that it is not defamatory. The test to determine defamation is whether the reasonable person of normal intelligence would view it as defamatory. The defendant can succeed with his defence of fair comment and public interest if no element of maliciousness is involved. The plaintiff only has to prove that the comment was prima facie defamatory of his character and that it was publicised.

Publication can be to a specific person or within hearing distance of the general public and is material if heard by or publicised by the public in a book, postings on websites, or bulletin boards on the Internet.

The onus is on the defendant to prove his defences on a balance of probabilities. This means that where two versions are before a court it should decide on the most probable version under the circumstances. When the court cannot decide which version is the truth for argument’s sake and the defendant raised it as defence, he then will not succeed with his defence.

In a democracy, forthright criticism, wild accusations and innuendos – often unfair and unfounded – are part and parcel of political activity and right-thinking persons in society generally do not think less of politicians who are subjected to derogatory statements by opposing politicians or political commentators. The context might cause material, that would otherwise have been defamatory, to be no more than mere abuse. Courts allow wide latitude for political debate and politicians should not be over-hasty in complaining. Nonetheless, it is important to note that courts extend latitude, not immunity, and there are limits: any latitude extends only to political information or activity or issues pertaining to the country’s governance, not beyond. A distinction must also be drawn between an unwarranted attack on the dignity and reputation of a politician and an attack on the person’s political views, policies and conduct. Courts have to give effect to the values of openness, transparency and accountability, yet protect dignity and privacy. It seems that the bounds are exceeded where improper motives or dishonourable conduct is imputed.

References:

  • Law of South Africa, Volume 8(1) – Second Edition Volume
  • Delta Motor Corporation (Pty) Ltd, vs Van der Merwe, 2004 (6) SA 185 (SCA)
  • Constitution of the Republic of SA, 1996 ss 10 and 16
  • National Media Ltd vs Bogoshi, 1998 4 All SA 347 (SCA)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Wills and Esates

WHAT HAPPENS TO MY BANK ACCOUNTS WHEN I DIE?

In previous articles we suggested that the best way to ensure that your assets are distributed as you want them to be distributed, is to draw up and maintain a will. Should you die without a valid will, your assets will be distributed in terms of the Intestate Succession Act. This may result in unpractical distribution of assets and may lead to someone inheriting whom you did not want to inherit.

In your will you have the choice to determine what should be done with your assets. You should also appoint an Executor who will distribute your assets and manage the administrative tasks in order to fulfil the stipulations of the will and finalise the administering of your will.

As mentioned in previous articles, the death must first be reported to the Master of the High Court and the original will (or the lack of relevant required documentation) must be sent to him. The Master will then formally appoint the Executor by sending him an Executor’s letter and allocating a unique estate number to the estate. This estate number wil then be used in all future correspondence with and enquiries from the Master’s Office.

What happens to my bank accounts?

The Administration of Estates Act determines that all bank accounts in the name of the deceased should be frozen and closed eventually, therefore it is extremely important that you make provision for your loved ones, so that they will have cash in hand when you pass away. Usually the accounts are frozen immediately after word of the passing has been received, so money can still be deposited, but no withdrawals will be allowed. As soon as the Executor has been appointed he/she should open a new bank account in the name of “Estate Late XYZ” according to the stipulations of the Administration of Estates Act. This is because you leave your assets to what forms your “estate”. A new bank account will be opened by the Executor and all monies of the deceased in any other bank accounts (as well as his/her spouse in the case of a marriage in community of property) will be transferred to the new bank account in the name of the estate. All estate funds will then be administrated in the estate’s bank account by the Executor until the Liquidation account (statement of assets and liabilities) is approved by the Master and has been open for inspection and remained unchallenged. The Executor will then be in a position to proceed with the distribution of estate assets and finalising of the administration of the estate.

Support to the next of kin

It may, however, take anything from 3 weeks to 3 months or longer for the Master of the High Court to formally appoint  the Executor. The fact that the Administration of Estates Act requires that all bank accounts be frozen as soon as possible after date of death may result in the next of kin or other financially dependent parties not being able to access the funds of the deceased while awaiting the appointment of the Executor. In case of a marriage in community of property the bank accounts in the name of the surviving spouse will also be frozen and closed, according to the stipulations of the Administration of Estates Act, which may have dramatic consequences. Once the Executor has been appointed, he/she may start administering the estate assets, and only then will he/she be in a position to consider interim advances against inheritance. We therefore urge you to make provision for the time following your passing, so that your next of kin have money available for their immediate needs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.